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2024 DIGILAW 1742 (ALL)

Brijlal v. State Of U. P.

2024-07-25

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : (Ashutosh Srivastava, J.) 1. Heard Sri Ganga Prasad Gupta, learned counsel for the petitioner, learned Standing Counsel for the State-respondents, Sri Bhupendra Kumar Tripathi, learned counsel for respondent no. 5, the Gaon Sabha concerned and Sri Narendra Mohan, learned counsel who has filed his appearance on behalf of the respondent no. 4, Sudama Devi w/o Rambali. 2. The writ petition arises out of mutation proceedings and has been filed questioning the legality, propriety and correctness of the order dated 04.06.2024 passed by the Board of Revenue in Revision No. 1988 of 2024 under Section 210 of the U.P. Revenue Code, 2006 whereby and whereunder the revision preferred against the order dated 30.04.2024 passed by the SDM, Mariyahu in Appeal No. 2209 of 2023 under Section 35(2) of the U.P. Revenue Code, has been rejected and the order dated 30.04.2024 has been upheld. 3. Learned counsel for the petitioner contends that the dispute relates to Arazi No. 88 area 0.016 hectare initially recorded in the names of Lalta Prasad and Indrajeet sons of Mata Prasad. The recorded tenure holders sold the aforesaid Arazi No. 88 to the respondent no. 4 Sudama Devi w/o Rambali by executing a sale deed dated 18.09.2020. Mutation proceedings under Section 34 of the U.P. Revenue Code, 2006 was initiated by the respondent no. 4 before the Naib Tehsildar which proceedings were registered as Case No. 3449 of 2020. A report was called for from the Lekhpal and the Lekhpal submitted the report dated 03.11.2023 to the effect that demarcation of the Arazi No. 88 area 0.016 hectare was done by the Halka Lekhpal on 18.04.2022 and as per the report the entire area of Plot No. 88 was a road constructed by the PWD and the land was not being used for agricultural purposes. The vendor and vendee were not in possession over the plot and no mutation order could be passed in favour of respondent no. 4. The petitioner also filed objections to the Mutation Proceedings asserting that the Plot No. 88 was a public road and no mutation order could be passed in respect thereof. The husband of the petitioner also constructed a boundary wall by encroaching over northern patri of the PWD road. The petitioner had filed a complaint on the Chief Minister's portal and the PWD was ordered to take action. The husband of the petitioner also constructed a boundary wall by encroaching over northern patri of the PWD road. The petitioner had filed a complaint on the Chief Minister's portal and the PWD was ordered to take action. A notice dated 27.11.2020 was issued with regard to the encroachment over the PWD road. The notice was challenged before this Court in Writ-C No. 30 of 2021 which writ petition was disposed of vide order dated 19.03.2021 directing the State respondents and PWD to undertake measurement of the disputed plot and in the event the alleged boundary wall is found on the public land only then it may be removed. Thereafter a fresh report dated 26.05.2022 is stated to have been filed by the Halka Lekhpal stating that the entire land of Plot No. 88 was recorded as Sadak and no agricultural operation is carried out over the said plot. 4. The Naib Tehsildar relying upon the said report vide order dated 21.02.2023 rejected the mutation case. Aggrieved by the order dated 21.02.2023 the respondent no. 4 filed an appeal under Section 35(2) of the U.P. Revenue Code, 2006 registered as Case No. 3449 of 2020 before the Sub Divisional Magistrate. In the appeal it was averred that the petitioner herein namely Brijlal s/o Chhabinath Yadav is not a co-tenure holder of the plot in question nor can be said to have any interest therein so as to oppose the mutation on the basis of registered sale deed. The vendee is in possession over the land sold since the date of the sale and the vendor has appeared before the mutation Court and accepted the same. The name of the respondent no. 4 is liable to be mutated over the plot in question on the basis of the sale deed. 5. The Sub Divisional Officer, Mariyahu, Jaunpur vide order dated 30.04.2024 after hearing the petitioner, respondent no. 4 and after calling for instructions from the Assistant Engineer PWD, Jaunpur allowed the appeal of the respondent no. 4 recording categorical findings that the PWD Road has been in existence over part of the Plot No. 88 area 0.016 hectare and the entire plot is not PWD road and the Naib Tehsildar has erred in law in passing the order dated 21.02.2023. 4 recording categorical findings that the PWD Road has been in existence over part of the Plot No. 88 area 0.016 hectare and the entire plot is not PWD road and the Naib Tehsildar has erred in law in passing the order dated 21.02.2023. The order dated 21.02.2023 was accordingly set aside and the matter was remanded back to the Naib Tehsildar to decide the mutation case afresh in the light of the observations made in the order and considering the decisions of the Courts of law by a reasoned and speaking order in accordance with law. 6. The petitioner aggrieved by the order dated 30.04.2024 passed in Appeal under Section 35(2) of the U.P. Revenue Code, 2006 preferred the revision under section 210 of the U.P. Revenue Code, 2006 registered as REV/1988/2024/Jaunpur which has been dismissed vide the order dated 04.06.2024 holding that the order dated 30.04.2024 has been passed on merits and is in accordance with law and there is no occasion to interfere with the said order. The revision has been rejected at the admission stage itself. 7. Learned counsel for the petitioner has argued that the orders passed by the Board of Revenue dated 04.06.2024 in Revision as also the order dated 30.04.20224 passed by the SDM in appeal under Section 35(2) of the Revenue Code, 2006 are erroneous inasmuch as the authorities omitted to consider that the respondent no. 4 never got possession over the plot no. 88 nor cultivated it at any point of time and there being a public road over the whole plot there was no vacant land and no mutation order could be passed without recording a finding of possession. It is accordingly submitted that the orders passed by the Board of Revenue and the SDM are liable to be set aside and the writ petition is liable to be allowed. 8. Sri Narendra Mohan, learned counsel appearing for the respondent no. 4 as also learned Standing Counsel appearing for the State-respondents in opposition to the writ petition submit that the order passed by the SDM in appeal under Section 35(2) is a remand order and the Naib Tehsildar has been directed to decide the Mutation Case afresh. The Board of Revenue has rejected the revision against the said order. Pursuant to the remand order, the petitioner has already approached the Naib Tehsildar and filed his objections. The Board of Revenue has rejected the revision against the said order. Pursuant to the remand order, the petitioner has already approached the Naib Tehsildar and filed his objections. The orders are just and proper and call for no interference by this Court and the writ petition deserves to be dismissed at the threshold. 9. I have heard learned counsel for the parties and have perused the record. A perusal of the order dated 30.04.2024 of the SDM under Section 35(2) of the U.P. Revenue Code, 2006 reveals that adequate reasons have been given for setting aside the order dated 21.02.2023 passed by the Naib Tehsildar rejecting the Mutation case. The entire order of the Naib Tehsildar was based on the premise that the entire area of Plot No. 88 is PWD road. The SDM while considering the appeal of the respondent no. 4 has taken note of the fact that the report of the area Lekhpal has noted in the special particular column of the mutation notice that a road exists on part of the land. No credible evidence establishing the fact that the entire area of Plot No. 88 area 0.016 hectare is PWD road was on record before the authorities below nor the same has been filed before this Court. The SDM has further recorded the fact that the PWD road exists only over part of the disputed plot has been verified by the PWD department itself. 10. As regards the submission of learned counsel for the petitioner that no finding of possession has been recorded by the SDM or the Board of Revenue in the opinion of the Court the SDM has not proceeded to pass the order mutating the name of the respondent no. 4 over the plot in dispute on the basis of the sale deed rather has set aside the order of the Naib Tehsildar and remanded the matter back for decision afresh taking note of the fact that the possession of the respondent no. 4 had been admitted by her vendor. In the opinion of the Court, possession has to be construed as legal and lawful possession i.e. possession under law and not only actual physical possession. It has been submitted at the Bar that arguments before the Naib Tehsildar after remand have already taken place and 30.07.2024 has been fixed as the next date. 11. In the opinion of the Court, possession has to be construed as legal and lawful possession i.e. possession under law and not only actual physical possession. It has been submitted at the Bar that arguments before the Naib Tehsildar after remand have already taken place and 30.07.2024 has been fixed as the next date. 11. In view of the above, the Court finds that the orders dated 04.06.2024 passed by the Board of Revenue as also the order dated 30.04.2024 passed by the SDM do not suffer from any infirmity warranting any interference by this Court under Article 226 of the Constitution of India. The writ petition lacks merit and is accordingly dismissed.